Dent v. Ormond et al

Filing 6

MEMORANDUM OPINION & ORDER: It is hereby ORDERED as follows: 1. Dent's Eighth Amendment claims are DISMISSED, with prejudice. 2. Dent's state law medical malpractice claims are DISMISSED, without prejudice. 3. This action is DISMISSED and STRICKEN from the Court's docket. 4. A corresponding judgment will be entered this date. Signed by Judge Gregory F. Van Tatenhove on 09/13/2017.(KJA)cc: COR, mailed paper copy to pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
JASON DENT,
Plaintiff,
v.
RAY ORMOND, Warden, et al.,
Defendants.

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Civil No. 6:17-cv-0229-GFVT

MEMORANDUM OPINION
&
ORDER

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Jason Dent is a federal prisoner who was recently confined at the United States
Penitentiary – McCreary in Pine Knot, Kentucky. Proceeding without a lawyer, Dent filed a
civil rights complaint pursuant to the doctrine announced in Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971). [R. 1]. This matter is now before the Court for initial
screening pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2). For the reasons set forth below, the
Court will dismiss Dent’s claims.
Dent’s factual allegations are very brief. [R. 1 at 2-3]. He claims that, at some point in
2016, he “went to medical complaining of a sore throat,” and prison Physician Assistant Mitchell
Dyer gave him two injections and prescribed him an antibiotic. [R. 1 at 2]. Dent indicates that
he was initially taking two antibiotic pills per day, but adds that he was later taking six pills per
day. [R. 1 at 2]. Dent then claims that, in September of 2016, he had diarrhea and blood in his
stool. [R. 1 at 2-3]. Dent states that a registered nurse tested his stool, and the test came back
positive for C. Diff. [R. 1 at 3]. Dent then generically says “they refused to take me to the
outside hospital,” but he acknowledges that medical officials placed him in isolation. [R. 1 at 3].
Dent concludes by saying, “I never went back to medical complaining about my throat nor did

PA Dyer call me back to medical to see if my condition got worst for the increase (four extra
antibiotic pills) in antibiotic pills.” [R. 1 at 3].
Dent does not clearly allege that he suffered any lasting harm as a result of this situation.
Nevertheless, Dent pursued administrative remedies from the Bureau of Prisons. [R. 1-1].
However, prison officials informed Dent that his medical records did not support his allegations.
[R. 1-1 at 7].
Dent then filed this lawsuit against three defendants in their official and individual
capacities: (1) Warden Ray Ormond; (2) Physician Assistant Mitchell Dyer; and (3) Medical
Administrator Rhonda Jones. [R. 1 at 1-2]. Dent claims that these defendants displayed
deliberate indifference to his serious medical needs in violation of the Eighth Amendment to the
United States Constitution and also engaged in medical malpractice. [R. 1 at 4]. Dent is seeking
$2 million in damages. [R. 1 at 8].
As an initial matter, Dent’s claims against the defendants in their official capacities are
barred by sovereign immunity. This is because the United States as a sovereign is generally
immune from suit. United States v. Sherwood, 312 U.S. 584, 586 (1941). This immunity
extends to claims against government agents acting in their official capacities. Blakely v. United
States, 276 F.3d 853, 870 (6th Cir. 2002). While the United States can expressly waive its
immunity, it has not done so in Bivens actions, such as this case. See Nuclear Transport &
Storage, Inc. v. United States, 890 F.2d 1348, 1351-52 (6th Cir. 1989). Therefore, Dent’s claims
against the defendants in their official capacities are barred.
Dent’s Eighth Amendment claims against the defendants in their individual capacities fail
to state claims upon which relief may be granted. To be sure, under certain circumstances, a
prisoner can establish an Eighth Amendment violation if he is provided inadequate medical care.
However, the plaintiff must show that the defendant acted with deliberate indifference to the
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plaintiff’s serious medical needs. See Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th
Cir. 2004) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Here, even when the complaint is
construed in the light most favorable to Dent, his very brief, mostly generic factual allegations
are not enough to establish an Eighth Amendment claim against any of the defendants.
For starters, Dent has not made out an Eighth Amendment claim against Warden Ormond
because he has not alleged that the Warden was personally involved in making decisions about
his medical care. See Lewis v. Turner, 16 F. App’x 302, 303 (6th Cir. 2001) (concluding that the
district court properly dismissed claims against current and former prison wardens because the
plaintiff did not sufficiently allege that the defendants had any direct involvement in the
supposed constitutional violations). Similarly, while Dent lists Medical Administrator Jones as a
defendant in this action, he fails to allege that Jones was personally involved in his medical care;
in fact, Dent does not mention Jones once in any of the very short, numbered paragraphs in his
complaint. [R. 1 at 2-3]. Thus, Dent’s Eighth Amendment claim against Jones is also
unavailing. Finally, although Dent implies that he suffered from bowel-related issues and C.
Diff because he took too many antibiotics, he does not clearly allege that Physician Assistant
Dyer was responsible for the purported overmedication. And, more importantly, Dent fails to
allege with any specificity that Dyer acted with deliberate indifference or some other culpable
mental state. Therefore, there is simply no basis to Dent’s claim that Dyer inflicted cruel and
unusual punishment on him. Accordingly, the Court will dismiss Dent’s Eighth Amendment
claims with prejudice.
While Dent has not stated viable claims under the Eighth Amendment, the Court reaches
no conclusion as to his medical malpractice claims. Instead, the Court simply declines to
exercise supplemental jurisdiction over these claims. This is because the Court has already
dismissed Dent’s Eighth Amendment claims, and it further concludes that the balance of judicial
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economy, convenience, fairness, and comity all point toward declining jurisdiction over these
state law claims. See 28 U.S.C. § 1367(c)(3); Carnegie-Mellon University v. Cohill, 484 U.S.
343 (1988); Musson Theatrical, Inc. v. Federal Exp. Corp., 89 F.3d 1244, 1255 (6th Cir. 1996)
(noting that “[a]fter a 12(b)(6) dismissal, there is a strong presumption in favor of dismissing
supplemental claims”).
In summary, Dent’s claims against the defendants in their official capacities are barred by
sovereign immunity; his Eighth Amendment claims against the defendants in their individual
capacities fail to state claims upon which relief may be granted; and the Court declines to
exercise supplemental jurisdiction over Dent’s medical malpractice claims.
Accordingly, it is hereby ORDERED as follows:
1. Dent’s Eighth Amendment claims are DISMISSED, with prejudice.
2. Dent’s state law medical malpractice claims are DISMISSED, without prejudice.
3. This action is DISMISSED and STRICKEN from the Court’s docket.
4. A corresponding judgment will be entered this date.
This the 13th day of September, 2017.

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